THE CHILDREN WE LEAVE BEHIND: EFFECTS OF HIGH-STAKES TESTING ON DROPOUT RATES SHIRI KLIMA* Not too long ago, I talked a former student, Ana, through a serious life-decision: whether she should drop out of high school. For every argu- ment she posed as to why she should cut her education short, I had a re- sponse. She had dropout friends who were “doing alright”; I suggested those friends may not be “doing alright” in ten years. She needed to help her family financially; I explained that high school graduates are more likely to be able to support themselves and their families in the long run. Her classes were boring, and her teachers even more so; I replied that not everything worth learning must be enjoyable, but there is a purpose and a benefit to learning it. For every point she made, I passionately argued the counterpoint. “But Ms. Klima,” she shouted in frustration, “there’s just no way I’m going to pass AIMS,1 and then I won’t graduate even if I stay all four years!” Even now, I am not sure how to best respond to that contention. Realistically, she was correct; she stood a very slim chance of passing, and if she did not, she would not graduate. My weak but adamant answer, which I repeated in two subsequent conversations, was that she needed to just try her best and, hopefully, she would pass. But even as I pushed her to study rigorously, it troubled me that she probably would not pass that test and, consequently, would not graduate from high school. Therefore, staying in school may not get her very far. It angers me that Arizona and * I want to thank Professor Tom Griffith for his advice and guidance throughout the process of writing this Note. Also, I have great appreciation for all my editors, who gave critical feedback, par- ticularly those who understand just how high the stakes really are: Tali Klima, Christina Marin, Jennifer Greene, Stuart Starky, Jann Hawkins, Emily Kronemeyer, Michelle Deutchman and Elizabeth Ander- son. Finally, a big “thank you” to all of my former students, who, collectively, left an immense impres- sion on me, and to the few of you (you know who you are) who did not give up on me either. 1 Arizona’s Instrument to Measure Standards is a standards-based test given to all elementary, junior high and high school students. 3 4 REVIEW OF LAW AND SOCIAL JUSTICE [Vol. 17:1 many other states would have laws in place that encourage students to drop out. It was against this backdrop that my Note topic was conceived. Part I of this Note explains the move toward the increased use of high-stakes testing in America and the resulting federal No Child Left Behind Act of 2001 (“NCLB” or the “Act”). Part II describes a related concern, the crisis in nationwide dropout rates. Part III explains how policies which dictate using high-stakes tests as baseline, necessary qualifications for graduation lead to devastating effects. Part IV explains how grade retention further complicates and impacts the dropout crisis. Finally, Part V argues for three policy changes: 1) standardizing and mandating dropout calculations; 2) forcing adherence to NCLB’s graduation rate provisions and creating corre- lating state provisions; and 3) amending NCLB to prohibit the use of exam scores as mandatory requirements for graduation or promotion. I. HIGH-STAKES TESTING AND NO CHILD LEFT BEHIND Standardized achievement tests have been around for years in numer- ous countries and have become increasingly popular in U.S. school systems in the twentieth century.2 During the 1990s and the early part of this cen- tury, virtually every state adopted new statewide standards and testing pro- grams.3 Unlike their predecessors, these tests often were used to determine both promotion to the next grade and high school graduation.4 In 2001, the U.S. Congress authorized a significant revision of the 1965 Elementary and Secondary Education Act (“ESEA”) called the No Child Left Behind Act of 2001,5 which was signed into law by President George W. Bush on January 8, 2002.6 At NCLB’s core—and indeed the most controversial part of the legislation—is the nationwide achievement 2 R. MURRAY THOMAS, HIGH STAKES TESTING: COPING WITH COLLATERAL DAMAGE 12–13 (2005). 3 Id. at 15. 4 Id. at 13–16. Thomas explains that this transition primarily was the result of international test- ing done by the International Association for the Evaluation of Educational Achievement in which American students in higher grades scored disturbingly low as compared to their international counter- parts. “Thus, the educational reform movement was not generated from within the education system itself but, rather, was being forced on the schools by the business community and a worried public.” Id. at 15. 5 No Child Left Behind Act of 2001, Pub. L. No. 107-110, 115 Stat. 1425 (codified as 20 U.S.C. §§ 6301–7941). 6 THOMAS, supra note 2, at 16. 2007] THE CHILDREN WE LEAVE BEHIND 5 testing provision.7 This testing is the method by which other goals of NCLB are carried out.8 These goals include: (a) distinguishing between good schools and bad schools, (b) rewarding successful schools and punishing failing ones, (c) transferring students from failing schools to successful ones, (d) informing parents of students’ achievement-test performance, and (e) providing tutors for students whose test-scores have been unsatisfac- tory.9 Although NCLB requires such testing in order for states to qualify for the substantial federal funding offered, the Act does not explicitly recom- mend that these test scores be used to decide grade promotion or high school graduation.10 Nevertheless, states are permitted to use the scores for such purposes, 11 and many have chosen to do so. Moreover, the U.S. De- partment of Education has encouraged such use of test scores.12 What used to be standardized achievement tests utilized only to measure and compare students and schools have turned into high-stakes tests with severe consequences for all parties involved. Under the Act, a school must make “adequate yearly progress” (“AYP”) as defined by the state every academic year.13 Under NCLB, AYP includes graduation rate accountability provisions,14 but these provisions are not seriously enforced. 7 Id. The testing provision in NCLB requires a continuation of the ESEA-required testing in reading and math skills at three grade spans (grades three to five, six to nine and ten to twelve) until the 2005 to 2006 school year. After that, each child’s progress in reading and math should be tested every year in grades three through eight and at least once during grades ten through twelve. Additionally, beginning in 2002–2003, students judged to have limited English proficiency have their English- language skills tested. By 2007–2008, all students must also be tested in science at least once in grades three through five, again in six through nine and once more in ten through twelve. States may also elect to test in other subject areas. Each state may create or adopt its own test, although they are all com- pared to an independent benchmark called the National Assessment of Educational Progress (“NAEP”), which is a series of exams created by the federal government. This is designed to ensure that states are not setting unacceptably low standards. For a further discussion of what is tested, who creates the tests and the passing standards in each state, see THOMAS, supra note 2, at 16–18. 8 Id. at 82. 9 Id. 10 Id. at 18. 11 Id. 12 Id. 13 Id. at 18–19. 14 Under the NCLB section entitled, “State Plans,” adequate yearly progress in part “includes graduation rates for public secondary school students (defined as the percentage of students who gradu- ate from secondary school with a regular diploma in the standard number of years).” 20 U.S.C. § 6311(b)(2)(C)(vi) (Supp. 2002). NCLB also requires that each state create an annual state report card including graduation rates for secondary school students consistent with this definition. Id. § 6311(h)(1)(C)(vi). 6 REVIEW OF LAW AND SOCIAL JUSTICE [Vol. 17:1 Other aspects of the definition of AYP, especially the necessary test scores and resulting consequences, are strictly enforced.15 A school that does not meet its AYP goal for two consecutive school years must be identified by the school district as “needing improvement.”16 School officials must then develop a two-year school improvement plan supported by the local educa- tion agency (usually the school district).17 Students must be offered the op- tion of transferring to another public school within the district that is not labeled as needing improvement, and the costs of this transfer are borne by the failing school.18 If the school does not make adequate yearly progress for a third year, it remains in school improvement status, and students must continue to be given the option of changing schools within the district.19 Additionally, students from low-income families are eligible for supple- mental educational services, such as tutoring or remedial classes, from a state-approved provider.20 In the fourth year that a school fails to make AYP as measured by the tests, the district must implement “corrective ac- tions” for school improvement, such as replacing staff or implementing a 15 GARY ORFIELD ET AL., LOSING OUR FUTURE: HOW MINORITY YOUTH ARE BEING LEFT BEHIND BY THE GRADUATION RATE CRISIS 10 (2004). According to the report, the graduation rate ac- countability provisions were inserted into NCLB’s definition of adequate yearly progress in part to bal- ance the incentive for teachers and administrators to push out struggling students.